Groups call Prop 8 Supporters’ Assault on Impartiality of Gay and Lesbian Judges “Offensive”

(San Francisco, CA, May 13, 2011)—A coalition of groups that advocate for the civil rights of lesbian, gay, bisexual and transgender people today filed a brief urging the U.S. District Court not to vacate last year’s historic ruling invalidating Proposition 8. Lambda Legal, the National Center for Lesbian Rights, the ACLU of Northern California and Equality California filed the friend-of-the-court brief in Perry v. Brown in response to a motion filed last month by supporters of Proposition 8 that asked the court to undo last year’s decision in that case. The Prop 8 supporters contend that now-retired Chief Judge Vaughn Walker should have declined to hear the case because he was in a long-term relationship with another man, and that the judge’s 135-page decision, which followed a three-week trial, should be invalidated for that reason.

The brief filed by the groups argues that the Prop 8 supporters’ motion closely parallels long-discredited historical attempts to disqualify judges based on their race, sex or religion. The groups contend that the Prop 8 supporters’ argument boils down to the notion that essentially no gay, lesbian or bisexual judge could impartially preside over a case involving the rights of same-sex couples—an offensive suggestion that has been consistently rejected by the courts in similar cases involving race and sex discrimination.

“The suggestion that a judge’s sexual orientation prevents him from doing his job is deeply offensive,” said National Center for Lesbian Rights Legal Director Shannon Minter. “The same type of identity-based arguments were used to attack judges based on their race, gender, and religion in the past. Those arguments have been soundly rejected as offensive and insupportable in past cases, and they should be rejected here as well. Generalizations based on personal characteristics have no place in our system of justice.”

Said Jon Davidson, Legal Director of Lambda Legal: “This stinks of desperation on the part of Prop 8 supporters. Everyone has constitutional rights, so cases that raise constitutional issues routinely affect the public at large, including judges. But that’s no basis for recusal, here or in any case. A female judge has no duty to recuse herself from hearing a case involving women’s right to vote, even if she wanted to vote. It would be absurd if, in order to rule on discrimination claims, judges would need to practice discrimination themselves. And the notion that being in a same-sex relationship renders a judge unable to interpret the law and uphold the sworn duty to rule impartially is insulting to both judges and America’s system of justice.”

“Prop 8 supporters are resorting to desperate tactics because they presented no concrete evidence that denying same-sex couples the fundamental freedom to marry serves any legitimate purpose other than to prevent an entire group of people from enjoying equality and security,” said Jim Carroll, Equality California Interim Executive Director. “We are confident that backers of Prop 8 will fail at their laughable efforts to discredit Judge Walker and to divert attention away from their flimsy case built on fear, ignorance and prejudice.”

“The Prop 8 supporters say that their motion is not based on Judge Walker’s sexual orientation, but instead on the fact that he’s been in a long-term relationship with another man. This is a distinction without a difference,” explained Elizabeth Gill, Staff Attorney, LGBTQ & AIDS Project, ACLU of Northern California, “If sexual orientation isn’t a basis for recusal, then neither is a relationship with a person of the same sex.”

Chief Judge James Ware will hear the motion on June 13th, along with Proponents’ motion requesting the return of certain trial recordings.

Read the brief

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.

Equality California is the largest statewide lesbian, gay, bisexual, and transgender rights advocacy organization in California. Over the past decade, Equality California has strategically moved California from a state with extremely limited legal protections for LGBTQ individuals to a state with some of the most comprehensive civil rights protections in the nation. Equality California has passed more than 70 pieces of legislation and continues to advance equality through legislative advocacy, electoral work, public education and community empowerment.


The American Civil Liberties Union of Northern California (ACLU-NC) is the largest affiliate of the American Civil Liberties Union (ACLU), a nationwide, nonpartisan organization with more than 550,000 members dedicated to the defense and promotion of the guarantees of individual liberty secured by state and federal Constitutions and civil rights statutes. ACLU-NC works on behalf of lesbians, gay men, bisexuals, and transgendered people to win even-handed treatment by government; protection from discrimination in jobs, schools, housing, and public accommodations; and equal rights for same-sex couples and LGBTQ families.


Lambda Legal is a national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work.